Gardner v. Navistar Intern. Transp. Corp.

• Decision Date: 02 May 1991
• Docket Number: No. 4-90-0686,4-90-0686
• Citation: 571 N.E.2d 1107,213 Ill.App.3d 242
• Parties: , 157 Ill.Dec. 88, Prod.Liab.Rep. (CCH) P 12,891 Vera GARDNER, As Executrix of the Estate of Homer E. Gardner, Deceased, and for the next of kin of Homer E. Gardner, Deceased, Plaintiff-Appellant, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., Successor in Interest to International Harvester Company, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1107

571 N.E.2d 1107

213 Ill.App.3d 242, 157 Ill.Dec. 88,

Prod.Liab.Rep. (CCH) P 12,891

Vera GARDNER, As Executrix of the Estate of Homer E Gardner, Deceased, and for the next of kin of Homer E. Gardner, Deceased, Plaintiff-Appellant, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., Successor in Interest to International Harvester Company Defendant-Appellee.

No. 4-90-0686.

Appellate Court of Illinois Fourth District.

May 2, 1991.

Cook, Shevlin, Keefe, Ysursa, Brauer & Bartholomew, Ltd., Belleville; Bruce N. Cook and Harriet H. Hamilton, of counsel, for plaintiff-appellant.

Michael S. Sundermeyer, Thomas M. Patton, Williams & Connolly, Washington, D.C., and A. James Shafter, Kehart, Shafter, Hughes & Webber, Decatur, for defendant-appellee.

Justice STEIGMANN delivered the opinion of the court:

This case involves an appeal from the trial court's granting of summary judgment, necessitating that we reexamine the evidentiary foundations required before summary judgment is entered. As part of this reexamination, we will analyze Supreme Court Rule 191 (134 Ill.2d R. 191), dealing with affidavits submitted in support of motions for summary judgment.

I. BACKGROUND

In October 1980, Homer Gardner (Gardner) was operating his Oliver model 88 tractor to pick corn in his fields. An explosion occurred on the tractor, and Gardner was seriously burned. He died from his injuries eight days later.

In September 1982, plaintiff, Vera Gardner, brought an action against International Harvester Company (IH) and other defendants as executrix of Gardner's estate and for the next of kin. Navistar, the successor corporation to IH, was substituted as the proper named defendant in April 1989.

In her complaint, plaintiff alleged six counts against defendant. Counts I through III were on behalf of Gardner for his personal injuries and subsequent death. (See Ill.Rev.Stat.1989, ch. 110, par. 2-1008(e).) These three counts sought compensatory damages due to defendant's negligence (count I), strict liability (count II), and for punitive damages due to defendant's wilful and wanton misconduct (count III). Counts IV through VI sought recovery for wrongful death (see Ill.Rev.Stat.1989, ch. 70, pars. 1 through 2.2.) and similarly alleged negligence (count IV), strict liability (count V), and wilful and wanton misconduct (count VI).

In April 1983, William Niendick, who worked as a farmhand on the Gardner farm, testified at a deposition that he began working for Gardner in 1970. Niendick testified that the original gas cap on the Oliver tractor broke around 1977 or 1978, and that a tin can was placed over the broken gas cap to keep rain water out of the gas tank. Gardner continued to use the broken gas cap and can before he replaced it with an IH gas cap he found in a cake pan that sat on a workbench in his machine shed. Niendick testified that this IH gas cap had been in the machine shed for at least seven or eight years before it was used on the Oliver tractor. The IH gas cap was used for approximately two years prior to the accident.

(This case was "delayed" from consideration on its merits by contested issues of venue. See Gardner v. International Harvester Co. (1985), 133 Ill.App.3d 665, 88 Ill.Dec. 744, 479 N.E.2d 357, rev'd (1986), 113 Ill.2d 535, 101 Ill.Dec. 842, 499 N.E.2d 430.)

In September 1988, defendant filed a motion for involuntary dismissal or summary judgment, alleging that (1) the negligence counts should be dismissed because the "defendant owed no duty regarding the performance of the Oliver tractor," (2) counts II and V were barred by the statute of repose (Ill.Rev.Stat.1989, ch. 110, par. 13-213(b)), and (3) counts III and VI should be dismissed due to the absence of a showing of duty and proximate cause. After a hearing, the trial court granted defendant's motion, and held, as a matter of law, that (1) defendant owed no duty to Gardner, and (2) the statute of repose barred plaintiff's strict liability claims.

In June 1990, plaintiff filed a motion for reconsideration under section 2-1203 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-1203) to which she attached an affidavit from her attorney, Bruce N. Cook. Four photocopied exhibits were attached to the affidavit: (1) testimony given by William E. Trump in a similar case (see Stambaugh v. International Harvester Co. (1982), 106 Ill.App.3d 1, 13, 61 Ill.Dec. 888, 898, 435 N.E.2d 729, 739 (discussing the testimony of Trump, "a retired John Deere Company engineer")); (2) a safety warning issued by IH in August 1980 concerning its triple-baffled gas cap; (3) an internal IH memo to regional managers concerning the "serious hazard of fuel-related fires," dated August 14, 1980; and (4) trial testimony given by Donald Creighton, an engineering professor at the University of Missouri, given in another trial against defendant alleging a similar cause of action.

The trial court held that because Cook's affidavit did not conform to Supreme Court Rule 191 (see 134 Ill.2d R. 191), it would not be considered. The court then denied the petition to reconsider its order granting summary judgment in favor of defendant. In the alternative, the court ruled that even if the affidavit were to be considered, summary judgment was still proper as a matter of law on all counts.

II. ANALYSIS

Summary judgment is properly granted when the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c); Hagy v. McHenry County Conservation District (1989), 190 Ill.App.3d 833, 842, 137 Ill.Dec. 453, 459, 546 N.E.2d 77, 83.) In reviewing an order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue of material fact exists. (Seefeldt v. Millikin National Bank (1987), 154 Ill.App.3d 715, 718, 107 Ill.Dec. 161, 164, 506 N.E.2d 1052, 1055.) Therefore, in order to determine what facts were (or should have been) before the trial court when it decided the motion for summary judgment, we must first determine whether the trial court erred in not considering the information contained in plaintiff's affidavit supporting her motion to reconsider.

A. Application of Supreme Court Rule 191

On appeal, plaintiff first argues that the affidavit and attachments submitted with the motion for reconsideration presented facts sufficient to preclude enforcement of defendant's motion for summary judgment and asks this court to consider these materials in her subsequent arguments. Supreme Court Rule 191(a) provides, in part, the following:

"Affidavits * * * in opposition to a motion for summary judgment * * * shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim * * * is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." (134 Ill.2d R. 191(a).)

See also Dietz v. Spalla (1989), 186 Ill.App.3d 742, 746, 134 Ill.Dec. 509, 512, 542 N.E.2d 855, 858.

Leaving aside the tardiness of the filing of Cook's affidavit and whatever problems may be present by reference in that affidavit to testimony from other cases, the inclusion in Cook's affidavit of the photocopies of IH documents allegedly sent to owners of IH tractors or to IH regional managers presents serious problems. In determining the genuineness of a fact for summary judgment, a court should consider only facts admissible in evidence. (Seefeldt, 154 Ill.App.3d at 718, 107 Ill.Dec. at 164, 506 N.E.2d at 1055.) Basic rules of evidence require that a party must lay the foundations for the introduction of a document into evidence. (Seward v. Griffin (1983), 116 Ill.App.3d 749, 763, 72 Ill.Dec. 305, 316, 452 N.E.2d 558, 569; People v. Green (1977), 54 Ill.App.3d 252, 255, 12 Ill.Dec. 92, 95, 369 N.E.2d 589, 592; In re Estate of Fidler (1974), 23 Ill.App.3d 1046, 1053, 319 N.E.2d 822, 828.) To authenticate a document, evidence must be presented to demonstrate that the document is what its proponent claims. (People v. Munoz (1979), 70 Ill.App.3d 76, 85, 26 Ill.Dec. 509, 515, 388 N.E.2d 133, 139; Ross v. Pfeifer (1976), 39 Ill.App.3d 789, 795, 350 N.E.2d 797, 803.) A document the authenticity of which is not established is not admissible evidence.

The Illinois Supreme Court has provided a pretrial procedure for clearing this evidentiary hurdle. Rule 216(b) states that "[a] party may serve on any other party a written request for admission of the genuineness of any relevant documents described in the request." (134 Ill.2d R. 216(b).) However, no request to admit the genuineness of the IH documents attached to Cook's affidavit was ever made before that affidavit was filed.

Cook's affidavit did not establish that the source and content of these materials were within his personal knowledge and that "the affiant [Cook], if sworn as a witness, can testify competently [to the facts alleged therein]" (134 Ill.2d R. 191(a)). If Cook were called to testify about the matters in his affidavit, he would be unable to provide admissible testimony as to the substantive content of the exhibits he attached to his affidavit. See Tipsord v. Unarco Industries, Inc. (1989), 188 Ill.App.3d 895, 899, 136 Ill.Dec. 423, 426, 544 N.E.2d 1198, 1201.

As previously noted, Cook's affidavit was attached to plaintiff's petition for reconsideration of the trial court's order granting defendant's motion for summary judgment. The intended purpose of a petition to reconsider is to bring to the court's attention (1) newly discovered evidence which was not available at the time of the first hearing, (2) changes in the...